James Grant @CriminalLawZA Oct 2
@MizQue @sudz_dbn @barrybateman This is going to sound crazy - but the rule against double jeopardy only holds if one was in jeopardy 1/
James Grant @CriminalLawZA
@MizQue @sudz_dbn @barrybateman I can see an argument being made that OP wasn't in jeopardy on murder because of JM's possible errors. 2/2
I thought a person was considered in jeopardy simply by being tried for murder.
Not quite Mr Fossil - the trial needs to go to completion, and fairly and squarely.
If a judgment is set aside on the grounds of a material error in law, then double jeopardy does not apply and cannot prevent a retrial. You don't need to make much of an argument for this, it is laid down in statutory law in SA and it is trite that it is not in conflict with the constitutional right relating to double jeopardy. Nearly every case I've researched where the state has sought a retrial due to a question of law, the defence has objected on the grounds of double jeopardy and without fail the objection has been dismissed.
For example http://www.saflii.org/za/cases/ZASCA/2006/165.html:
[31] In the supplementary heads of argument filed for Mtshweni, counsel submits that an accuseds right to a fair trial which is guaranteed by the provisions of Section 35 of the Constitution in relation to the issue of double jeopardy is not affected by section 324 [of the Act].' Neither in English law, nor in Canadian or American law has the protection against double jeopardy been extended to cases where an acquittal had resulted due to technical mistakes, lack of jurisdiction or a reason other than a wrong finding on the merits of the case.
[32] It is clear, therefore, that there is no argument before this court that where a trial court has erred on a question of law, the institution of a new trial will infringe s 35(3)(m). The possibility of double jeopardy does not arise. And, as the State argues, there will be a serious miscarriage of justice should a proper trial not ensue. It is not only an accused whose interests must be protected by the criminal justice system. There must be fairness to the public, represented by the State, as well. There must be fairness to the victims of the crime and their families.
I should point out however, that the statutory law explicitly allowing a retrial is currently held to apply only where there has been a full acquittal and no competent verdict. My own view is that the state should not pursue a retrial.